Al-saleh v CLARSON
[2002] WASCA 122
•10 MAY 2002
AL-SALEH -v- CLARSON [2002] WASCA 122
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 122 | |
| Case No: | SJA:1162/2001 | 24 APRIL 2002 | |
| Coram: | McKECHNIE J | 10/05/02 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Sentence reduced to 2 years 3 months | ||
| A | |||
| PDF Version |
| Parties: | SALEH OMAR ABDULAH AL-SALEH GEOFF CLARSON |
Catchwords: | Sentence Detainee in lawful detention Riot Some offences part of same transaction Failure to take account of plea of guilty Irrelevant considerations Cost of trial |
Legislation: | Crimes Act 1914 (Cth), s 16A |
Case References: | Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47 Kauhanen v The Queen [1999] WASCA 14 Siganto v the Queen [1998] HCA 74; (1998) 194 CLR 656 Dinsdale v The Queen (2000) 175 ALR 315 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Oancea (1990) 51 A Crim R 141 Paunovic (1990) 51 A Crim R 174 R v Calabria (1982) 31 SASR 423 R v Chan (1999) 38 A Crim R 337 R v Gallagher (1991) 23 NSWLR 220 R v Shrestha (1991) 173 CLR 48 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Ward (1999) 109 A Crim R 159 Willmott v The Queen [2000] WASCA 300 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GEOFF CLARSON
Respondent
Catchwords:
Sentence - Detainee in lawful detention - Riot - Some offences part of same transaction - Failure to take account of plea of guilty - Irrelevant considerations - Cost of trial
Legislation:
Crimes Act 1914 (Cth), s 16A
Result:
Appeal allowed
Sentence reduced to 2 years 3 months
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr M M Flynn
Respondent : Mr D W L Renton
Solicitors:
Appellant : Legal Aid of Western Australia
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47
Kauhanen v The Queen [1999] WASCA 14
Siganto v the Queen [1998] HCA 74; (1998) 194 CLR 656
Case(s) also cited:
Dinsdale v The Queen (2000) 175 ALR 315
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Oancea (1990) 51 A Crim R 141
Paunovic (1990) 51 A Crim R 174
R v Calabria (1982) 31 SASR 423
R v Chan (1999) 38 A Crim R 337
R v Gallagher (1991) 23 NSWLR 220
R v Shrestha (1991) 173 CLR 48
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Ward (1999) 109 A Crim R 159
Willmott v The Queen [2000] WASCA 300
(Page 3)
- McKECHNIE J:
Introduction
1 The appellant is a person who was detained at the Curtin Immigration Reception Processing Centre pending consideration of his status. On 4 April 2001, there was a serious disturbance at the Curtin Immigration Reception Processing Centre.
2 A group of people were involved in the disturbance and a great deal of damage was done. A number of detainees were charged with offences arising from the events surrounding 4 April 2001. The appellant was one of them. Four other persons convicted of offences from that time have also appealed. Their appeals were heard by me concurrently.
3 The appellant was charged as follows:
(1) Complaint No BM 816/2001
On 3 April 2001 he wilfully and unlawfully destroyed personal property belonging to the Commonwealth namely a number of dinner plates at Curtin Immigration Reception Processing Centre: Crimes Act 1914, s 29.
(2) Complaint No BM 817/2001
On 3 April 2001 intentionally and knowingly threatened a person carrying out a duty on behalf of the Commonwealth by threatening officers employed by Australasian Correctional Management Pty Ltd at Curtin Immigration Reception Processing Centre with broken pieces of crockery: Crimes Act 1914, s 76(1)(b)(ii).
(3) Complaint No BM 818/2001
On 4 April 2001 he wilfully and unlawfully damaged property belonging to the Commonwealth namely a fence at Curtin Immigration Reception Processing Centre: Crimes Act 1914, s 29.
(4) Complaint No BM 819/2001
On 4 April 2001 he urged the commission of offences against the law of the Commonwealth, namely urged persons at Curtin Immigration Reception Processing Centre to commit offences: Crimes Act 1914, s 29, s 7A.
(Page 4)
- (5) Complaint No BM 820/01
On 5 April 2001 intentionally and knowingly threatened an officer carrying out a duty on behalf of the Commonwealth by threatening to kill an officer employed by Australasian Correctional Management Pty Ltd at Curtin Immigration Reception Processing Centre: Crimes Act 1914, s 76(1)(b)(ii).
5 Following a trial, the appellant was convicted of each of the other offences. He does not appeal against his conviction.
6 The learned Magistrate's sentencing remarks are very brief. To an extent this is understandable coming as they do after a trial and reasons for judgment. Nevertheless, it was important for the Magistrate to isolate the different offences from the background of the riot in order to ensure that proper responsibility was attributed to the appellant in respect of each of the offences for which he was convicted and that he was not sentenced for extraneous matters.
7 The Magistrate said:
"I find you guilty of all charges. I'm an old man and I very seldom see riots of that nature. You are extremely lucky that you are not up for murder charges. The riots on that day, if the officers had not been as professional as they were in my finding, and management would not have been professional and had restraint, then there would have certainly been many injured people and I'm quite certain dead people.
You were the cause of the riots. Because you were refused a permanent or whatever he called it, visa, you realised that you had nothing to lose. You carried that game on all the way until the end which is now. You knew from the beginning of this hearing that you had no defence. That you were - - you decided that you would make us pay until the end.
Your evidence I did not believe it at all. You were evasive, you were ducking, and you were answering the questions so it would suit your defence case. I've considering (sic) the sentencing and I see very few reasons why I should give you the benefit of a reduced term.
(Page 5)
- I will accept that you may have remorse now, but that is too late. It cost the Australian taxpayer $300,000 plus most likely a hearing like this onto 50 - $60,000.
I accept that you have no previous convictions in this land. I've taken into consideration your age, but I keep reflecting back on the danger that you caused at the Curtin Detention Centre. I cannot visualise in most cases, a more dangerous situation to bring people, children, women and other people their lives in danger, as you did.
In relation to the charges of unlawful, wilfully and unlawfully destroying personal property – both charges, I sentence you to 15 months imprisonment cumulatively. I do not consider a recognisance because the crimes you have committed were the gravest one can about commit.
In relation to intentionally and knowingly threatening the officer – on both charges there will be a 6 month imprisonment cumulatively. 6 months on each - -
In relation to the charge that you urged the commission of the offences, there will be 6 months imprisonment cumulatively.
As I've stated in my reasons Mr Al-Saleh, I'm stunned and surprised for a person who claims to leave a violent society – and I'm not saying it is or it isn't. I'm only saying for a person to claim – that he then only shortly after arriving in a land which is very peaceful and people are very ready to accept people and to help them, that violence like that can be started and committed."
8 There followed a discussion with the prosecutor about a non-parole period. The Magistrate initially fixed 42 months but upon the prosecutor pointing out that sentence was in excess of the allowance under the Crimes Act imposed a non-parole period of 32 months.
9 Each sentence was made cumulative. The total sentence therefore was that of 4 years' imprisonment. The sentences were backdated to commence on 21 April 2001.
The grounds of appeal
10 It is convenient to deal with each ground separately.
(Page 6)
Ground 1
"The learned Magistrate erred in law in failing to properly exercise discretion when setting a non-parole period of 32 months.
Particulars: The learned Magistrate erred in law by having regard to one factor only, namely, the maximum permissible non-parole period provided by law."
11 In Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47, I said at par 17-19:
"17. The Magistrate did not make an order because in each case he wished the appellant to spend the entire time to which he had been sentenced in custody. The Crimes Act applies to all persons sentenced by courts for offences against Australian Commonwealth law. All are entitled to the benefit of its provisions, even persons operating such as these appellants.
18. It is an error of principle to fail to take into account legislation dealing directly with minimum terms simply to ensure the longest possible period in custody. There was no factor which militated against the setting of a minimum term and other facts positively in favour, including the antecedents of each appellant and the general circumstances.
19. … The usual range for a recognisance release order or non-parole period is somewhere between a half and two-thirds of the sentence, although it is open to set a period below that. When sentencing a Commonwealth offender the court takes into account those matters which are generally set out as sentencing principles in the Crimes Act Div 2 s 16A."
12 The present case differs somewhat because in this case the Magistrate has set a non-parole period. He selected the maximum he might impose. I can only infer he did so because he regarded the applicant as the cause of the riots and the consequence of the riots was that a dangerous situation developed.
(Page 7)
13 This, however, illustrates the errors that can occur if focus is not maintained on the actual offences and the criminality in respect of those offences.
14 The first offences occurring on 3 April 2001 were the breaking of six plates and threatening an officer briefly with the jagged edge of a plate when the officer intervened.
15 Although the event may have been the precursor to the disturbances which followed the next day, there was no evidence that the appellant had so acted in order to instigate a riot. Indeed, the trigger of the appellant's actions seems to have been a telephone call shortly before the incident when he was informed that his wife had been taken into custody by security forces in Jordan. His wife had had a miscarriage about a month earlier.
16 Under Crimes Act s 16A the court must take into account a number of matters enumerated in s 16A(2). The Magistrate in his sentencing remarks does not refer to any of those. It is difficult to escape the conclusion that he sought to impose the maximum non-parole period because of his view of the seriousness of the offences. While such an exercise of discretion may have been open, the lack of proper explanation in the circumstances and the presence of the factors to which I have adverted, leads me to the conclusion that the discretion has miscarried.
Ground 2
"The learned Magistrate erred in law in treating the Applicant's plea of not guilty as an aggravating factor when imposing entence.
Particulars: The learned Magistrate regarded the cost of the hearing as an aggravating factor when sentencing the Applicant."
17 In Kauhanen v The Queen [1999] WASCA 14 at par 18, Malcolm CJ with whom Pidgeon and Anderson JJ agreed said:
"It is, of course impermissible to increase what is a proper sentence for an offence to mark the court's disapproval of the fact that an accused has put the prosecution to the proof or having presented a time wasting or scurrilous defence: R v Gray [1977] VR 225 at 221 per McInerney and Crockett JJ. This principle was approved by the High Court in Siganto v The
(Page 8)
- Queen [1998] HCA 74 at [21-22]; (1998) 159 ALR 94 at 99 per Gleeson CJ, Gummow, Hayne and Callinan JJ who said:
'A person charged with a criminal offence is entitled to, plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would have otherwise been imposed'."
"The first ground of appeal arises out of the following observations made by Angel J in the course of his remarks on sentence. His Honour said:
'You pleaded not guilty, having always denied the charge, and have shown no remorse whatsoever. The jury took but a short time to find you guilty, an inevitable finding on the evidence. The jury were satisfied that you lied on oath in denying the crime, and that you lied to police during the record of interview when you said you were home on the night in question, and that you pretended to confuse your movements during that week when confronted with a Woolworths docket showing that you were out on the road on the night in question rather than at home as you had told the police.
Your victim, a full-blood Aboriginal woman, was greatly distressed by your crime. Her distress was evident to police officers who attended the Winnellie Post Office, and other police officers who interviewed her sometime after the event. Your victim's distress was aggravated by having to give evidence against you, both at the committal and at trial'."
"It is argued on behalf of the appellant that the manner in which Angel J referred to the appellant's plea of not guilty indicates that his Honour treated this as an aggravating circumstance, and increased the punishment which would otherwise have been imposed by reason of the fact that the appellant defended himself against the charge. Without question, that would have
(Page 9)
- constituted a serious error. In R v Gray (1977) VR 225 at 231 the Victorian Court of Criminal Appeal said:
'It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court's disapproval of the accused's having put the issues to proof or having presented a time wasting or even scurrilous defence.'
A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence."
20 There is a real, not simply semantic, difference between treating the fact that a defendant has put forward a defence, even an incredible defence, as evidence of lack of remorse and treating a plea of not guilty and a trial as aggravating the offence. Unless the difference is kept carefully in mind, error may well result.
21 In this case I am satisfied that error did result. The comments by the Magistrate "you decided that you would make us pay until the end" and "It cost the Australian tax payer $300,000 plus most likely a hearing like this onto 50 - $60,000" brings into the mind of the sentencer an irrelevant consideration. It is irrelevant because the cost of the hearing has no impact on the criminality of the offences. To hold otherwise is to deny the right of a person to plead not guilty and defend himself or herself in the manner explained in Siganto at par 22. I would uphold this ground of appeal.
Ground 3
"The learned Magistrate erred in law when assessing the culpability of the Applicant for each offence.
(Page 10)
- Particulars: When imposing sentence, the learned Magistrate placed weight upon evidence of extensive property damage and potential serious injury that occurred on 4 April 2001 without consideration of:
(a) The extent to which each offence committed by the Applicant involved either property damage or potential serious injury;
(b) The contribution of persons other than the Applicant to the property damage or the potential serious injury."
22 The Magistrate's remarks are open to the interpretation that the appellant had caused the riot which cost the Australian taxpayer $300,000.
23 There is some basis for these remarks. As the Magistrate found, on 4 April 2001 the appellant addressed a crowd of detainees saying, "Those who do want to follow me, do. Those who don't, this camp will never be the same". Also "I do not care what officer speaks Arabic, I will destroy this camp".
24 This constituted the offence of incitement to damage of which the appellant was convicted.
25 There followed an attack on the fence during which the fence was destroyed. This constitutes the charge of damaging the fence.
26 The next morning on 5 April the appellant made a threat to kill an ACM officer. Although the appellant was at that stage contained behind wire, the threat was a future threat which the officer took seriously.
27 These offences were very serious and I am satisfied that the Magistrate did not err in treating them as serious.
28 However, the offences just described must be differentiated from the offences of the night before the breaking of the plates and the brief threat to the ACM officer.
29 I will deal further with those offences when I come to consider the appeal Ground 5. As to the others just set out, there is a clear need for general and personal deterrence. Attribution of joint responsibility with others in causing damage ignores the role played by the appellant. Except for the offences on 3 April 2001 this ground is not made out.
(Page 11)
Ground 4
"The learned Magistrate erred in law in failing to have regard to relevant mitigating factors.
Particulars:The learned Magistrate failed to place any or sufficient weight upon factors relevant to the Applicant:
(a) The Applicant's plea of guilty to the offence of damaging dinner plates;
(b) The hardship endured by the Applicant as a result of being a detainee."
30 The Magistrate imposed a sentence of 15 months imprisonment on the appellant for the offence of breaking the dinner plates. This was an offence to which the appellant had pleaded guilty. It was precisely the same sentence as imposed for damaging the fence the following day. It does not appear that the Magistrate took into account the plea of guilty at all in relation to the first sentence: Crimes Act s 16A(2)(g).
31 As to the hardship endured by the applicant as a result of being a detainee, I reject this ground. At the time of the commission of these offences the appellant was in lawful detention under the provisions of the Migration Act. Any hardship that occasioned was entirely as a result of his own actions in doing acts which caused the provisions of the Migration Act to apply to him.
Ground 5
"The learned Magistrate erred in imposing a sentence that was manifestly excessive.
Particulars: This ground is particularised as follows:
(a) The sentence of 15 months imprisonment for damaging a dinner plate upon the Applicant's plea of 'guilty' was plainly disproportionate to the circumstances of the offence;
(b) The learned Magistrate erred in failing to have regard to the 'totality principle' in that cumulation of the individual sentences resulted in a sentence that was excessive having regard to the overall criminality of the Applicant;
(Page 12)
- (c) The sentence imposed by the learned Magistrate was crushing."
32 As the argument developed, the appellant chiefly relied on Ground 5(a).
33 This ground must succeed. There has to be some proportionality in the punishment with the crime. Here, the appellant broke six dinner plates. A sentence of 15 months for such an offence is manifestly excessive even before regard is had to the fact that he pleaded guilty to it, and there was an explanation for the behaviour to be found in the telephone call which he had received shortly before. The threat to the ACM officer required punishment. However, here again the circumstances of the threat had to be evaluated. The threat was really one part of the transaction and required a concurrent sentences.
Conclusion
34 For reasons I have outlined, I would generally allow this appeal.
35 It becomes necessary to re-sentence the appellant. Ordinarily, I would impose a fine in respect of the offence of unlawful damage of the plates. However, there is now no practical utility in this course.
36 The offence of damaging the dinner plates is part of the one transaction with threatening the ACM officer on 3 April 2001 and therefore I will impose concurrent sentences.
37 The urging of the commission of an offence and the subsequent damaging of a fence is part of one transaction and requires concurrent sentences. I regard the events of 3 April as distinct from the events of 4 April and distinct from the events of 5 April. Therefore the sentences should otherwise be cumulative for the groups of offences on each day should be concurrent with each other but cumulative on the sentences imposed in each group.
38 This will results in sentences as follows:
3 April 2001
(1) Complaint No BM816 of 2001 - damaging dinner plates (contrary to Crimes Act s 29) – sentence 1 month.
(Page 13)
- (2) Complaint No BM817 of 2001 - threatening ACM officer with broken pieces of crockery (Crimes Act s 76(1)(b)(ii) – sentence 6 months
These sentences are made concurrent.
4 April 2001
(1) Complaint No BM 818 of 2001 – damaging fence (Crimes Act s 29) – 15 months.
(2) Complaint No BM 819 of 2001 – urging commission of offence (Crimes Act s 29, s 7A) – 6 months
These sentences are made concurrent with each other but cumulative on the sentences imposed on Complaint No BM816 and BM817 2001.
5 April 2001
(1) Complaint No BM 820 of 2001 – threatening to kill (Crimes Act s 76(1)(b)(ii) – 6 months.
39 This sentence is to be served cumulatively on the other sentences.
40 The total sentence is 2 years and 3 months. In respect of that aggregate sentence I make a recognisance release order upon his giving security in the sum of $2,000 that he will be of good behaviour for a period of 1 year. Upon entering into that recognisance release order the appellant is to be released forthwith.
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